the Government in this emergency by doing everything possible to bring about an administration of military justice which will result in adequately punishing offenders for their wrong-doings but which will hold them to service whenever this can be done with safety to our arms. [Signed] E. H. Crowder, Judge Advocate General. 8. SUNDRY TOPICS OF COURT-MARTIAL Procedure From: The Office of the Judge Advocate General. March 15, 1918. Subject: Various matters relating to the administration of military justice. 1. Some confusion seems to exist among judge advocates as to the scope of General Order No. 7, War Department, January 17, 1918. The closing sentence of paragraph 2 is as follows: "This rule will not apply to a commanding general in the field except as provided in rule 5." Many judge advocates seem to assume that commanding officers of divisions in this country are to be considered as commanding generals in the field within the meaning of that term as used in the said order. This is an error. This office does not consider the commanding general of a division in this country a commanding general in the field. 2. The attention of division judge advocates is invited to the fact that the commanding officer at a camp has no authority as such to convene a general court-martial. In cases where a division commander is the commanding officer of a camp where his division is stationed, his orders convening a court-martial should be issued as division orders and not as camp orders. 3. The judge advocate of the 37th Division, referring to the requirement that the convening order and all orders modifying the detail for the court be set out in the record, presents the following: "It appears to me that great gain can be accomplished by the following suggested procedure. Upon the opening of the court, if more than one case is intended to be tried at that session, to cause each of the accused to appear; the convening and modifying orders could then be read once, and incorporated in the record of the first case tried. Each succeeding record might then recite: The order convening the court and modifying orders were read in the presence of the accused at the beginning of the session, as appears of record in the transcript of the case of Private John Doe, Company, -Infantry.' He suggests that this procedure "would save from one to four pages of record in each case tried during the session except the first; would lessen the time consumed by trials and the expense to the United States thereof." This office cannot endorse this proposal. In the first place a courtmartial, being a court of limited and special jurisdiction, it is required that each record be complete in itself and show all the facts necessary to establish jurisdiction. The convening and modifying orders are of prime importance in this connection. They must be issued by one having authority to convene general courts-martial and only officers. detailed to act as members of the court can officiate in that capacity. It would involve great irregularity and uncertainty in handling courtmartial records if the validity of a record in a given case should be made to depend upon what is entered in the records of trial in other cases. 4. The judge advocate of the 38th Division invites attention to the apparent conflict between A. W. 48 and sub-paragraph (b), paragraph II, letter from this office dated February 13, 1918. He states: "Sub-paragraph (b), referred to above, directs that in all cases in which the execution of the sentence is deferred until the record of trial has been reviewed in this office the court-martial order is to be drafted ready for publication. Under the 48th Article of War a record involving a dismissal of an officer goes to Washington and the court-martial order published there." It is to be noted, of course, that the circular letter of February 13, 1918, from this office, refers to all cases in which action is completed by the convening authority and the general court-martial order in the case published by him. Obviously it would have no application to cases forwarded under the 48th Article of War (Comp. St. 1916, § 2308a) for the action of higher authority. 5. The judge advocate of the 84th Division presents an inquiry as follows: "A member of the court sits at a proceeding in revision who was not a member of the court at the original hearing of the case, thereby invalidating the sentence finally imposed by the court in the proceedings in revision. The question is asked whether or not the action of the reviewing authority on the proceedings in revision might not be regarded as an absolute nullity, leaving the reviewing authority free to act upon the original proceedings as though the proceedings in revision had never been taken or return the record to the court for new proceedings in revision, as he might decide." This office has so held. The reviewing authority, in his corrective action, should refer to the error previously made and should issue a "Corrected Copy" of the original order in the case. [Signed] E. H. Crowder, Judge Advocate General. 9. OFFICER PREPARING CHARGES-ELIGIBILITY AS MEMBER OF Articles of War LXXII I. COURT March 18, 1918. From: The Office of the Judge Advocate General. general court-martial. 1. In your communication of March 4, 1918, you state that Private Battery B, 61st Artillery, C. A. C., was arraigned charged with MIL.L.-52 two offenses under the 96th Article of War (Comp. St. 1916, § 2308a), and upon being arraigned pleaded guilty to both; that the charges were signed by Captain Hardie, who was a member of the court; that when arraigned the accused stated that he had no objection to being tried by any member of the court present; that Captain Hardie thereupon announced that he had signed the charges but had not formed an opinion. He was not challenged by either the prosecution or the defense. No evidence was taken as to whether or not he was eligible, and the court did not make a finding or record of any action upon the question of his eligibility and, in fact, no action was taken thereon. On this state of facts you submit these two questions: (a) Does the record sufficiently establish the fact that Captain Hardie, in preferring and signing the charges, was acting in a purely ministerial manner and was therefore not the accuser in the case? (b) If his eligibility is not sufficiently disclosed, can the reviewing authority return the record for correction by taking testimony on the eligibility of this officer to sit as a member of the court before taking final action on the case? 2. In an opinion under date of February 20, 1914, construing the Act of March 2, 1913, now embraced in the 9th Article, it was said: "3. Whether or not an officer is the accuser in a particular case is a question of fact. If he is the accuser, he is ineligible to sit as a member of the court for the trial of that case. If, notwithstanding his ineligibility, he does sit as a member of the court, the proceedings are necessarily invalid; for a court composed wholly or partly of officers statutorily ineligible to sit as members thereof is not a lawful court. J. A. G. O. 30-435, Oct. 11 and Nov. 13, 1913; p. 6, Bul. 38, W. D., 1913. "4. The evident intent of the legislation quoted above is to disqualify for service as a member of the trial court any officer who has placed himself in the attitude of accusing the person to be tried of the offense for which he is to be tried. When an officer upon his own motion prefers and signs a charge there can be no question but that he is the accuser within the meaning of the statute, and is, therefore, disqualified to sit as a member of the court for the trial of such charge. "5. An officer may, however, not of his own motion but in pursuance of orders from superior authority prefer and sign a charge. In such a case, the action of the officer preferring and signing the charge may be purely ministerial and represent no conviction whatever on his part that an offense has been committed, or that, if an offense has been committed, it was committed by the person charged. In such a case the accuser is not in fact the officer signing the charge, but the officer who directs the preparation and signing of the charge. The former is, therefore, not within the prohibition of the statute, while the latter is. "6. The officer who has signed the charge in a particular case is, however, prima facie the accuser in that case. In signing the charge he has performed an act that, in the absence of a showing to the contrary, must be construed as having been performed in the capacity of an accuser. Prima facie he is, therefore, ineligible to sit as a member of the trial court; and the burden of showing that he is in fact eligible must rest upon those who assert such eligibility. It follows that unless there be a showing to the effect that he is not in fact the accuser in the case he must be regarded as disqualified under the statute from sitting as a member of the court for the trial of the case; and in the absence of such a showing he should be excused from further service as a member of the court when the charge bearing his signature is laid before the court. "7. If, when the charge is laid before the court, a showing be made to the satisfaction of the court that the preferring of the charge by the officer signing the same was an act purely ministerial in character, performed in pursuance of orders from superior authority and representing no initiative or conviction on the part of the officer so signing, I think the court may find that the officer is not in fact the accuser within the meaning of the statute and therefore is not disqualified under the statute from sitting as a member of the court for the trial of In such a case, however, the fact that evidence touching the eligibility of the officer was heard by the court, and the finding arrived at by the court, should be made of record. "8. In the absence of the showing, finding and record mentioned in the preceding paragraph, the fact that the officer whose name is signed to the charge sat as a member of the trial court must be regarded as invalidating the proceedings. In general we can look only to the record itself to determine the validity of the proceedings. The record of the case which in the broadest sense must be held to include the original charge, shows that the officer who signed the charge sat as a member of the trial court." To the same effect is an opinion of this office under date of February 28, 1914, and the earlier opinions of October 11, 1913, and November 13, 1913. In the opinion of this office, Captain Hardie was ineligible to sit as a member and the proceedings are invalid. 3. Your second question must be answered in the negative. Captain Hardie sat as a member of the Court. Prima facie, he was ineligible to sit and the proceedings are invalid. The question of the eligibility. of Captain Hardie should have been tried and disposed of before arraignment and the organization of the Court. On the face of the record, the Court was never lawfully constituted, and it would not be lawful for it now to reconvene to take evidence upon and to investigate the legality of its own existence. 4. The proceedings should be set aside as null and void and the charges referred to another Court for trial. [Signed] S. T. Ansell, Acting Judge Advocate General. 10. JURISDICTION OF MILITARY POLICE OVER CIVILIANS Army II F. March 21, 1918. From: The Office of the Judge Advocate General. 1. In your memorandum for the Chief of Staff of the 88th Division, you reach the following conclusion: "(a) It is the opinion of this office, however, that within the limits of the five mile zone, civilians who violate the regulations promulgated by the President and the Secretary of War, may be properly apprehended by the Military Police for violations of sections 12 and 13 of the Act of May 18th, and that having been so apprehended they should at once be turned over to the civil authorities. This office bases its opinion that such arrests and apprehensions may be properly made by the Military Police, upon the provisions of the law which authorize the President and Secretary of War to make regulations prescribing zones which shall be, in a qualified sense, under military control as to alcoholic liquors and prostitution; and the fact that such regulations have been made and promulgated by the President and Secretary of War under the provisions of the law and are now in force. This power, however, does not go to the searching of houses or buildings, nor seizure of property held for unlawful purposes, although it would seem that such power, for the purpose of efficient service, might well have been included." "(b) Upon the other branch of the inquiry, however, the use of the Military Police outside the five mile zone, this office is unable to find any authority which either expressly or by implication, authorizes the Military Police to make arrests of civilians, or to act either independently or in aid of civil authorities in so far as the activities of civilians are concerned." 2. As to paragraph (a) above quoted, the Judge Advocate General does not concur. So far as the jurisdiction of the military authorities over civilians is concerned, there is no distinction between the proscribed zone and elsewhere. As to paragraph (b), your conclusion is approved, except in so far as you restrict it to territory outside the proscribed zone. The military authorities have no power to order the Military Police or any other part of the Army, as such, to assist the civil authorities in the execution of the law, except when called upon in the manner provided for in the Constitution of the United States and the Acts of Congress. 20 Stat. 152; U. S. Comp. St. 1916, § 1992. Some of the language used in your opinion, while correct as applied to the particular cases before you, is entirely too broad as a statement of general principles. Of course, what is here said does not contemplate the situation where, under the well-known conditions, military power may by proper authority be exercised in aid of the Federal civil power. [Signed] S. T. Ansell, Acting Judge Advocate General. |